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370

ELECTION OF THE CHIEF MAGISTRATE. [CHAP. IV.

trigues. He thought an election by the Legislature the worst of all modes.

Mr. Williamson was also opposed to it. He suggested that every man should vote for three candidates; one of them would probably be of his own State; the other two from other States.

Gouverneur Morris approved of this expedient, and proposed that each man should vote for two persons, one of whom, at least, should not be of his State.

Mr. Madison approved of the suggestion.

Mr. Gerry still dwelt on the ignorance of the people as disqualifying them from making the election. They would be under the influence of men acting in concert, such as the Society of the Cincinnati, who, he thought, would thus always elect the Chief Magistrate.

Mr. Dickinson was decidedly in favor of an election by the people. He said that the people of each State would choose its best man, and the people of all the States would choose one of the thirteen thus selected.

Mr. Mason noticed the several modes of election that had been proposed, with the objections to them. Adverting to Mr. Williamson's, of each man voting for several candidates, he admitted it was plausible, but liable to the insuperable objection of throwing the appointment into the hands of the Cincinnati. He concluded with moving that the Executive be chosen by the Legislature for seven years, and be then ineligible.

For this there were seven ayes; Connecticut, Pennsylvania, and Delaware, no; Massachusetts not voting.

The provisions of the new Constitution which had been agreed to by the convention were referred, on the twenty-third of July, to a committee of detail, on whose report the whole was subjected to reconsideration; and on the twenty-fourth of August, on resuming the

1787.]

CHOICE BY ELECTORS.

371

subject of the Executive, it was again moved to give the election to the people: but the motion received the votes of only Pennsylvania and Delaware; nine States voting in the negative.

There was a difference of opinion as to whether the votes of the two branches of the Legislature should be joint or separate, and as to the relative votes of the States.

The election by electors to be chosen by the people was also negatived by six votes to five.

The subject was resumed on the fourth of September, and the mode of election subsequently adopted was proposed by a committee of eleven. The subject, after some discussion, was again postponed. Two days subsequently different propositions were made, in case of the failure of the electors to elect, all of which were disagreed to.

On the sixth, the plan of choosing by electors was carried by nine States to two- North and South Carolina; and, in case they did not elect, referring the election to the Senate from the five highest on the list of candidates.

Mr. Williamson proposed that, in such cases, the election should be by the House of Representatives, each State having one vote; to which all the States assented, except Delaware.

It was further provided that a quorum for such election should consist of a member or members from twothirds of the States: and thus this perplexing subject was brought to a close, in the form it was finally made to assume but this part of the Constitution, it deserves to be remarked, is the subject of one of the only two amendments which have been made to that instrument; and the particular provision of voting for two persons, one of whom was not to be of the same State as the voter which was received with peculiar favor, as effectually

372

POWERS OF THE EXECUTIVE.

[CHAP. IV.

counteracting local predilections -was the part which was found dangerous in practice, and most loudly demanded the amendment; so short-sighted are the wisest in their speculations concerning government.

About the powers of the Chief Magistrate there was less disagreement. Some were disposed to give to the Senate the exclusive power of appointment; but it was decided to give it to the Executive, requiring, however, the concurrence of the Senate. All treaties were to be made by the Executive, but to require the concurrence of two-thirds of the Senate.

A qualified negative on all legislative acts was given to the President, so as to make two-thirds of each branch of the Legislature necessary to pass any law to which he had refused to give his sanction. Some few would have given him an absolute negative; and some would have required three-fourths of the Legislature instead of two-thirds. The President alone might fill all vacancies that happened during the recess of the Senate; and the persons thus appointed remain in office till the end of the next session of the Senate. He has the power of pardon, except in cases of impeachment; is Commander-in-chief of the army and navy, and of the militia when called into service; and on him devolves the general execution of the laws. He may convene the Legislature, and, in case of disagreement of the two Houses, may adjourn

them.

When powers so large were conferred on the Chief Magistrate, the tenure of his office, and the term for which he held it, excited as much interest as the mode of his appointment; and in the minds of most of the members, the decision of these last questions influenced their opinions and votes on the mode of appoint

ment.

1787.]

POWERS OF THE FEDERAL GOVERNMENT.

373

By the resolutions submitted by Mr. Randolph, the Executive was to continue in office seven years.

Mr. M'Lurg, of Virginia, moved to substitute good behaviour for seven years.

His motion was supported by Gouverneur Morris and Mr. Madison.

This proposal received the support of New Jersey, Pennsylvania, Delaware, and Virginia; the other six States present voted no.

The motion to strike out the clause making the President ineligible for a second term had been previously agreed to.

The term reduced to six years-nine States ay,

ware no.

Dela

Mr. Pinckney proposed that the Executive should serve not more than six years out of twelve-five ayes,

six noes.

On the fourth of September, his term was reduced to four years.

In forming this Constitution, the convention found incalculable advantages from the light which the actual experience of the Confederation had afforded, especially in the distribution of the powers between the General government and the separate States.

About the powers conferred on the General government, there was not a great contrariety of views. All concurred that the entire regulation of commerce should be given to the Federal government, with the power to declare war, to raise armies and navies, and to levy taxes on the citizens of the several States; to establish a post-office; to coin money, and to regulate its value; and to pass naturalization laws. The points on which there was a difference of opinion were, comparatively, of minor importance.

374

MISCELLANEOUS PROVISIONS.

[CHAP. IV.

It was proposed to prevent Congress from enacting a navigation law without a majority of two-thirds, or threefourths; but it was rejected: and the power of creating corporations, as well as that of taxing exports, both of which some had wished, were expressly prohibited.

The peculiar interests of the slave-holding States were regarded in an express provision that fugitive slaves should be delivered up on the claim of the master; and from a regard to the earnest wishes of South Carolina and Georgia, Congress engaged not to prohibit the importation of slaves before 1808, and not to lay any tax on such importation exceeding ten dollars for each person.

Such acts of the States as were inconsistent with the powers granted to the Federal government were expressly prohibited, as laying duties on imports or exports, or tonnage duties; keeping troops, or ships-of-war, in peace; engaging in war, unless invaded; or making any treaty; issuing bills of credit; coining money; making any thing but gold and silver coin a legal tender; passing any bill of attainder, or ex post facto law, or any law impairing the obligation of contracts. In their jealousy of privileged classes, both governments were expressly forbidden to grant any order of nobility an interdict which seems, at the present day, as complete an act of supererogation as it would have been to forbid the introduction of the Mahomedan religion.

But on the distinctions of rank, and the subject of government, men's minds have since undergone a great change. Several of the members avowed a theoretic preference for monarchical government, and one of the ablest men in the body had strong doubts about the efficiency and endurance of any other. In the early discussions relative to the fundamental principles of the Constitution about to be formed, Mr. Hamilton submitted

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